Residue tests may cloud Temple murder trial

Defense says conflicts should exclude evidence

STEVE MCVICKER, Copyright 2007 Houston Chronicle |
October 28, 2007

FBI testing of gunshot residue in the slaying of a pregnant Katy woman violated agency guidelines and yielded contradictory results, and therefore should not be allowed into evidence in her husband's murder trial, his attorney said.

"In other words, the state would offer such evidence only to mislead the jury," defense attorney Dick DeGuerin stated in a written motion to state District Judge Doug Shaver, who is presiding over the trial.

David Temple's murder trial began two weeks ago. The question of whether the gunshot residue will be allowed into evidence will be decided at a hearing Monday.

Neither the defense nor Harris County Assistant District Attorney Kelly Siegler, who is prosecuting the case, would comment on the motion.

Belinda Temple was shot to death in the couple's home on Jan. 11, 1999. According to his statement, David Temple told investigators that someone had broken into their home and killed her.

Detectives from the Harris County Sheriff's Office concluded that the break-in had been staged, and that Temple had been having an affair with a woman he later married.

During the murder investigation, officials collected several items belonging to David Temple — a shirt, a warm-up jacket and a pair of tennis shoes — for gunshot residue analysis at the FBI's national crime laboratory in Quantico, Va.

According to DeGuerin's motion, the shirt and jacket were not received by the FBI lab until May 2000, 16 months after the killing. It was almost three more years — April 2003 — before the agency received the shoes. During the time in between, the evidence had been stored by the sheriff's office "under unknown conditions," according to the motion.

Contradicting results

In a 2003 analysis of the evidence, FBI chemist Charles Peters determined that the residue taken from the shirt, jacket and one shoe was "consistent" with the residue found on Belinda Temple, according to court documents.

The Temple trial originally was scheduled for January 2006. However, two weeks before it was to start, prosecutor Craig Goodhart acknowledged in a letter to the court that Peters was no longer certified as a gunshot residue expert and could not testify about his findings. Additionally, Goodhart wrote, Peters had been replaced in the FBI lab by analyst Diana Wright, who refused to testify about the accuracy of Peters' findings. She insisted on performing her own tests.

In December 2006, Wright's findings contradicted those of her predecessor. According to Wright's report, no residue could be found on David Temple's shirt or shoe. Wright also concluded that it "cannot be determined" if the residue on Temple's jacket was the same as that found on his dead wife.

In light of Wright's findings, DeGuerin argues in his motion that any reference to residue would only confuse the jury.

"The only reason that the state would have for offering the (gunshot residue) evidence would be to lead the jury to believe that the (gunshot residue) on (Temple's clothing) was from the same source as that found on the defendant's wife's clothes," his motion states.

Additionally, the DeGuerin motion accuses the FBI of violating some of its own protocols in performing the residue test — an allegation that appears to be verified by an online posting attributed to Wright.

In an August 2003 e-mail from Wright's address, the analyst stated that the FBI restricts residue analysis to evidence collected within five hours of a shooting, and only in FBI cases.

According to court documents, in January 2006, attorney Matt Hennessy, one of DeGuerin's law partners, wrote to Wright asking if the restrictions mentioned in her 2003 e-mail were still in effect. On Jan. 11, 2006, Wright replied via e-mail that the "policy remains unchanged."

Since, according to the motion, the residue evidence was not collected within FBI's five-hour time period, nor was it involving an FBI case, the "FBI strayed outside the limits that it set for itself — twice," DeGuerin wrote.

Residue tests phased out

DeGuerin's motion is not alone in raising questions about residue analysis performed by the FBI. In March 2006, the FBI announced that it would no longer use gunshot residue in its own investigations.

In a May 2006 statement to the Baltimore Sun, an FBI spokesman said the change reflected a shift in priorities toward fighting terrorism rather than a lack of confidence in the science of analyzing gunshot residue. However, an internal FBI study obtained by the Sun documented the presence of residue particles throughout the FBI lab, and that the contamination could jeopardize investigations because it cast doubt on the origin of the sample.